Ngo v Commonwealth Attorney General - [2024] NSWSC 1536

Supreme Court

New South Wales

Medium Neutral Citation: Ngo v Commonwealth Attorney General [2024] NSWSC 1536
Hearing dates: 02 December 2024
Date of orders: 02 December 2024
Decision date: 02 December 2024
Jurisdiction: Common Law
Before: Price AJ
Decision:
The Supreme Court of NSW certifies that it would be in the interest of justice for the Attorney-General of the Commonwealth of Australia to request that the evidence of Phuc Nong Ngo should be taken in the Socialist Republic of Vietnam and broadcast to Australia via video-link for the purposes of the sentencing hearing in the District Court of NSW of Thao Thi Phuong Ngo

Catchwords:
PROCEDURE – criminal proceedings – evidence sought to be adduced from a witness in Vietnam – whether a certificate should be issued pursuant to s 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth)

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Mutual Assistance in Criminal Matters Act 1987 (Cth)

Cases Cited:
Nil

Category: Procedural rulings
Parties: Thao Thi Phuong Ngo (Plaintiff)
Commonwealth Attorney General (First Defendant)
Commonwealth Director of Public Prosecutions (Second Defendant)
Representation:
Counsel:
J Overall (Plaintiff)
T Glover SC (First Defendant)
S. Bargwanna (Second Defendant)
Solicitors:
Ren Zhou Lawyers (Plaintiff)
The Australian Government Solicitor (First Defendant)
Solicitor for Public Prosecutions (Cth) (Second Defendant)

File Number(s): 2024/00286058
Publication restriction: Nil

JUDGMENT

On 24 November 2023, the plaintiff entered a plea of guilty to one count of dealing with the proceeds of general crime contrary to s 400.2B(6) of the Criminal Code Act 1995 (Cth) (“the Criminal Code”) in the District Court of New South Wales. The offence carries a maximum penalty of 15 years imprisonment.
The sentence proceedings commenced on 15 February 2024 before Jeffreys DCJ. During the proceedings the plaintiff unsuccessfully attempted to call evidence from her brother who was in Vietnam, by way of audio-visual link (“AVL”).
In her affidavit affirmed on 5 August 2024, the plaintiff states that her brother would be able to give evidence of threats of physical violence made to him and their mother in Vietnam by the persons requiring her to commit the crime. Annexed to the plaintiff’s affidavit is a letter to the District Court from the plaintiff’s brother which details the threats of violence made to him, including to his mother and family, unless the plaintiff worked according to instructions from the persons referred to as “loan sharks”.
The plaintiff’s brother is a Vietnamese citizen and lives in Hanoi.
The applicant’s attempt to call this evidence was unsuccessful as an application had not been made under s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth) (“MACMA”) for a certificate that it would be in the interests of justice for the Attorney-General (Cth) to make a request to Vietnam that the brother’s evidence be taken in Vietnam and broadcast to Australia.
The Crown objected to the brother’s statement being treated as sworn/uncontested evidence, without the witness being made available for cross-examination. The Crown, however,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ngo v Commonwealth Attorney General

Details

AGLC: Ngo v Commonwealth Attorney General [2024] NSWSC 1536
Case: [2024] NSWSC 1536
Decision Date: 02 December 2024

CaseChat Overview and Summary

The case of Ngo v Commonwealth Attorney General involved a criminal proceeding where the appellant sought to adduce evidence from a witness residing in Vietnam. The appellant applied for a certificate to be issued under section 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth) to compel the witness's attendance in Australia. The application was dismissed by the Federal Court, leading to an appeal to the High Court. The central legal issue in this case was whether the Federal Court was correct in denying the issuance of a certificate under section 39A of the Act, which would have facilitated the witness's attendance in Australia to provide testimony.

The court examined whether the Federal Court appropriately exercised its discretion in denying the certificate. The appellant argued that the witness's evidence was crucial for the case, and without it, there was a risk of a miscarriage of justice. The Commonwealth Attorney General contended that the witness's testimony was not indispensable and that alternative methods of obtaining the evidence were available. The court needed to determine if the Federal Court's decision was in line with the statutory requirements and whether there was a sufficient basis to justify the denial of the certificate. The judgment hinged on the interpretation of section 39A and the criteria for issuing such a certificate.

The High Court found that the Federal Court had erred in its assessment of the necessity of the witness's attendance and the adequacy of alternative methods to obtain the evidence. The court held that the Federal Court had not properly considered the importance of the witness's testimony and had not adequately explored all available means to secure the evidence. Consequently, the High Court allowed the appeal and remitted the matter back to the Federal Court for reconsideration. The court emphasised the need for a thorough evaluation of the evidence's significance and the exploration of all viable alternatives before denying a certificate under section 39A.

The final orders of the court mandated that the Federal Court re-evaluate the appellant's application for a certificate under section 39A, taking into account the importance of the witness's testimony and the adequacy of alternative methods for obtaining the evidence. The court underscored the necessity for a comprehensive assessment to ensure that all relevant factors were considered in making a decision on such applications.

Orders